Q) National Stage by Fax (10.03.15p)

Recent test takers report that question #15 from the October 2003 (PM) test is in the patent bar exam database.

15. Applicant filed an international patent application under the Patent Cooperation Treaty (PCT) designating the United States. A copy of the international application has not been submitted to the USPTO by the International Bureau. The deadline for entering the national stage under 35 USC 371(c) was August 15, 2002. Applicant submitted all of the national stage items required by 35 USC 371(c) by facsimile transmission on August 15, 2002. The facsimile transmission was successfully received by the USPTO on August 15, 2002. The submission included an authorization to charge any required fees to the valid deposit account of the registered practitioner representing applicant. The account contained sufficient funds. Assuming that applicant has made no other national stage submissions under 35 USC 371(c), which of the following statements is most correctly describes why the national stage submission in accordance with the patent laws, rules and the procedures as related in the MPEP is proper or improper?
(A) The national stage submission was proper because facsimile transmission is a valid method of correspondence in the USPTO.
(B) The national stage submission was proper because a copy of an originally executed oath or declaration is acceptable, but the original oath or declaration should be retained as evidence of authenticity.
(C) The national stage submission was improper because a copy of the international application and the basic national fee necessary to enter the national stage as required by 35 USC 371(c) may not be submitted by facsimile transmission.
(D) The national stage submission was improper because the USPTO does not accept fee payments via facsimile transmission.
(E) The national stage submission was improper because facsimile transmission may never be used for PCT applications.

ANSWER: (C) is the most correct answer. 37 §§ CFR 1.6(d)(3); 1.8(a)(2)(i)(F); 1.495(b); MPEP § 1893.01(a)(1), 2nd paragraph. The filing of the copy of the international application and the basic national fee in order to avoid abandonment under 37 CFR § 1.495(b), as appropriate, may not be transmitted by facsimile. See 37 CFR § 1.6(d)(3) and 37 CFR § 1.8(a)(2)(i)(F). (A) is not the most correct answer because facsimile transmission is not permitted in the situations set forth in 37 CFR § 1.6(d). (B) is not the most correct answer because even though an oath or declaration may be submitted by facsimile transmission as set forth in MPEP § 602, the national stage submission was improper for the reasons discussed in (C). (D) is not the most correct answer because (C) is the most complete answer. Facsimile transmissions may not be used to file a copy of the international application necessary to enter the national stage. (E) is not the most correct answer because facsimile transmission may be used to file certain correspondence in PCT applications. See MPEP § 1805.